Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP. Graduate of Queen's University in Kingston, Ontario. Called to the bar in Ontario in 1997. Undergraduate degree at Colby College, Waterville Maine, U.S.A.

Thursday, 2 May 2013

There is an interesting debate going on in Ontario. The question is whether a property manager, hired by a landlord to manage and run a property, is permitted to initiate legal proceedings against tenants and appear at the Hearing to prosecute the application and evict the tenant. Or, is it the case that the property manager must hire a licenced professional--which means either a lawyer or a paralegal--to represent the Landlord at the Board.

This issue has been coming to a head since the province of Ontario required paralegals to become licenced under the provisions of the Law Society Act. For many years, paralegals were unlicenced individuals who hung up a shingle asserting that they could provide certain kinds of legal services. These unlicenced paralegals were not necessarily formally educated, may only have had "experience", or perhaps were just willing to give it a go and learn on the fly. The public had no way of knowing what they getting and no assurance that these unlicenced paralegals met any basic standard of competency. As unregulated professionals there was no insurance, no book-keeping oversight, no audit functions, and nothing in place to provide the public with any protection whatsoever other than the motto--buyer beware! Nevertheless, these paralegals were popular--because relative to lawyers--their services were virtually free!

Unlicenced paralegals appeared at the Landlord and Tenant Board as "agents" of the landlord. This was permitted in the law, and to be fair there were a great many good paralegals who knew, and still to this day know, what they are doing. However, as times changed increasing numbers of unlicenced paralegals appeared on the scene and innocent people were suffering the consequence of being represented by incompetent agents. For this, and also other reasons, it was decided by the Province, including the Law Society and the Paralegal Associations, that being a Paralegal would mean becoming a regulated professional, with competency standards, rules of professional conduct, and all of those things that encourages the public to have confidence in professionals.

Today, paralegals in Ontario are indeed licenced under the Law Society Act.

The licencing of certain paralegals and the imposition of standards has left some people excluded from the profession. These people continue to seek to do the legal work that only lawyers and paralegals are permitted, at law, to do before the Ontario Landlord and Tenant Board. These people often style themselves as "property managers" or "landlord representative" or even as "the landlord for the purpose of managing the property". In all instances, they are trying to get around the legal requirements of the Law Society Act and are trying to practice law when the only people entitled to practice law are lawyers and licenced paralegals.

Determining who may appear to represent a landlord, or a tenant, at the Board is more difficult that one might imagine. People do have the right to appear in person and certainly individuals can have an unpaid helper come along with them, or a family member can speak for a someone etc.. But what about a corporation? Should a corporation be permitted to appear through employees? Or should the Board require Corporations to Appear only through a licenced individual as is the case in the Superior Court of Justice? For a specific example, should a rent clerk at in a large corporate landlord's office be permitted to prepare legal documentation, submit that documentation to the Board and Appear at the Landlord and Tenant Board to argue the case? Is there a distinction between a person being paid by a landlord to provide legal services and an individual who is an employee of a landlord on a full time basis?

There aren't answers to all of these questions yet. However, we have come a long way to understanding that Property Managers are not able to represent the interests of landlord clients at the Board. This was made clear in the case of The Law Society of Upper Canada v. Chiarelli in which case the Court granted a permanent injunction against the property manager from appearing at the Board as a legal representative. The nature and scope of the services being provided is reviewed in the decision and it is now clear that those businesses we understand to be Property Management Companies are not permitted to represent their clients at the Landlord and Tenant Board. While this case is not a general pronouncement on the issue, it is certainly precedent to challenge any other unlicenced person appearing at the Landlord and Tenant Board on behalf of a party.

In my opinion, the reported cases are beginning to recognize that the provision of legal services in the Landlord and Tenant context has been professionalized. The law will no longer tolerate itinerant purveyors of legal solutions to unsuspecting landlords and tenants. In time, we can expect that all of the legal processes contemplated under the Residential Tenancies Act will have to be performed by a licenced lawyer or paralegal or the actual individual personal landlord or tenant. This will mean that all legal forms, Notices of Termination, other Notices (i.e. Notices of Rent Increase), Applications will have prepared, served, and filed by licenced individuals unless the it is the landlord or tenant themselves that are preparing the forms.

Some people will have an opinion about whether this is a good thing or bad thing. From my perspective it is neither good or bad, right or wrong. It is simply the reflection of a policy choice to regulate a previously unregulated profession. The choice having been made to regulate and hence impose fees, education requirements, insurance requirements (i.e. expenses), it necessarily follows that the work these regulated professionals do must be protected from unlicenced interlopers. Otherwise, why would anyone bother to be licenced and regulated?

Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP. Graduate of Queen's University in Kingston, Ontario. Called to the bar in Ontario in 1997. Undergraduate degree at Colby College, Waterville Maine, U.S.A.

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About Michael Thiele

Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP. Graduate of Queen's University in Kingston, Ontario. Called to the bar in Ontario in 1997. Undergraduate degree at Colby College, Waterville Maine, U.S.A.